830 F.3d 1178 (10th Cir. 2016), 15-1025, Foster v. Mountain Coal Co., LLC

Docket Nº:15-1025
Citation:830 F.3d 1178
Opinion Judge:PHILLIPS, Circuit Judge.
Party Name:EUGENE FOSTER, Plaintiff - Appellant, v. MOUNTAIN COAL COMPANY, LLC; ARCH WESTERN RESOURCES, LLC; ARCH COAL, INC., Defendants - Appellees and ROBERT FISK, Plaintiff,
Attorney:Damon J. Davis (J. Keith Killian, with him on the briefs) Killian Davis Richter & Mayle, P.C., Grand Junction, Colorado, for Plaintiff-Appellant. Jeffrey T. Johnson (Bradford J. Williams, and Stephen G. Masciocchi, with him on the brief) Holland & Hart, LLP, Denver, Colorado, for Defendants-Appel...
Judge Panel:Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
Case Date:July 26, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1178

830 F.3d 1178 (10th Cir. 2016)

EUGENE FOSTER, Plaintiff - Appellant,


ROBERT FISK, Plaintiff,



No. 15-1025

United States Court of Appeals, Tenth Circuit

July 26, 2016

Page 1179

Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:12-CV-03341-LTB-MJW).

Damon J. Davis (J. Keith Killian, with him on the briefs) Killian Davis Richter & Mayle, P.C., Grand Junction, Colorado, for Plaintiff-Appellant.

Jeffrey T. Johnson (Bradford J. Williams, and Stephen G. Masciocchi, with him on the brief) Holland & Hart, LLP, Denver, Colorado, for Defendants-Appellees.

Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.


Page 1180

PHILLIPS, Circuit Judge.

Eugene Foster appeals from a district-court order granting summary judgment in favor of Mountain Coal Company, LLC (Mountain Coal) on his retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203(a). Specifically, Foster appeals the district court's dispositive conclusion that his requests for accommodation were inadequate and untimely. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand to the district court for further proceedings.1


In November 2004, Foster began working at Mountain Coal's West Elk Mine (West Elk) in Colorado. On February 5, 2008, while working as a long-wall maintenance supervisor, Foster turned his head quickly and felt a pop in his neck. Because his neck was still hurting the next day, Foster sought care at the Delta County Memorial Hospital emergency room. After receiving treatment, Foster had the emergency-room doctor complete a return-to-work form that detailed Foster's injury, excused Foster from work on February 6 and 7, and authorized Foster to return to work on February 8. Although he ordinarily would have returned to work on February 8, Foster had a regularly scheduled week off beginning that day and continuing until February 15. And Foster had already scheduled a hernia operation for February 15 that required a recovery period extending until March 28. In all, Foster missed work from February 6 to March 28.

A. Mountain Coal Rejects Original Return-to-Work Form

On February 10, Ed Langrand, the Manager of Human Resources at Mountain Coal, called Foster to a meeting with West Elk management to discuss the neck injury. Foster testified that sometime during the meeting, a West Elk work-safety manager " jumped out of his chair and stated he had talked to so-and-so in St. Louis, and this was not going to be a workmen's comp accident." Appellant's App. vol. 2 at 412. Although Foster was surprised by the safety manager's outburst, the meeting continued. Langrand, along with other senior managers at West Elk, recommended that Foster see Dr. Thomas Dwyer, an orthopedic specialist, about his neck. During the meeting, Foster provided Langrand the return-to-work

Page 1181

form that the emergency-room doctor had completed. But Langrand rejected the form, directing Foster to have a doctor complete a Mountain Coal return-to-work form as company policy required. Foster agreed that he would do so when he went to the hospital for his hernia operation on February 15.

B. The Disputed Return-to-Work Form

During his deposition, Foster testified about his efforts to get a doctor to complete the Mountain Coal return-to-work form for his neck injury during his hospital stay from February 15 to February 17. Specifically, Foster asked his fiancé e to get the form filled out by the emergency-room doctor who had seen him on February 6. This effort failed when the emergency-room doctor declined to complete Mountain Coal's forms.

Faced with this, Foster told Langrand that the emergency-room doctor had refused to complete Mountain Coal's form. In response, Langrand told Foster to have Dr. Dory Funk--Foster's primary-care doctor--complete Mountain Coal's form. Foster attempted to do so. But when Foster arrived at Dr. Funk's office, he learned that Dr. Funk was on vacation. Facing that impediment, he left the blank Mountain Coal form with an office receptionist, who told Foster she would " see about getting it filled out when Dr. Funk returned" and would call Foster to report any developments. Appellant's App. vol. 5 at 959.

About a week later, someone from Dr. Funk's office called Foster to tell him he could pick up the completed form. According to Foster, he then retrieved the form and took it straight to the West Elk office. Nobody was at the West Elk office except a receptionist whom Foster did not know. After waiting for an hour and a half, Foster got an envelope from his truck, put the completed form in the envelope, and left it on the desk of a human-resources clerk, Sandra White. Foster further testified that, while speaking by telephone with a Mountain Coal employee regarding his disability benefits on March 13, he also spoke with White, who told him she had not received the form and needed him to provide another one. Apparently, five days after talking to White, Foster again went to Dr. Funk's office, obtained another form that Dr. Funk dated and signed on March 18, and soon afterward dropped off the form at West Elk.

At this point in Foster's deposition, the attorneys representing Foster and Mountain Coal both agreed to discontinue Foster's deposition because he had become incoherent after ingesting his pain medication. When Foster's deposition resumed two months later, Foster testified differently about what occurred after he allegedly placed the Mountain Coal form on White's desk.

This second time, Foster testified that Langrand had told him to obtain the completed form on March 17--not that White told him to obtain the completed form on March 13. Under this account, Foster testified that he understood that White had not received the completed form Foster left on her desk, but apparently White never told him to obtain a new one. Instead, on March 17, Langrand told Foster to return a completed form to Mountain Coal. Foster testified that he went to Dr. Funk's office the day after speaking with Langrand; obtained a second completed form, dated March 18; and took it to West Elk. Mountain Coal acknowledges that it received this completed return-to-work form.

C. Foster Visits with Dr. Dwyer

On March 10, at Mountain Coal's direction, Foster met with Dr. Dwyer about his neck pain. After Foster's initial examination, Dr. Dwyer set out to learn more

Page 1182

about Foster's condition by reviewing one of Foster's previous MRIs, by ordering another MRI, and by obtaining the treatment notes of Dr. Karen Nelson, who had given Foster injections to help alleviate pain. On March 24, Foster returned to Dr. Dwyer's office for a second scheduled office visit. By then, Dr. Dwyer had received the earlier MRI records and the results from the additional MRI, but still had not received Dr. Nelson's injection notes. After reviewing the MRIs, Dr. Dwyer wrote in his notes that he doubted that he would " ever recommend surgery to address all of the degenerative changes in [Foster's] spine," but that with more information " a more limited surgical intervention could potentially be appropriate" after " significant consideration and discuss[ions with Foster] about expectations." Appellant's App. vol. 8 at 1631-32. Before proceeding further, Dr. Dwyer still wanted to obtain Dr. Nelson's notes and to visit more with Foster about treatment options. Foster's next appointment with Dr. Dwyer was set for April 4.

D. April 3 Meeting

On March 31, Foster returned to work after his hernia-operation doctor provided him a Mountain Coal return-to-work form on March 25. The form excused Foster from work from February 15 until March 28.2 On April 3, Jim Miller, General Manager at West Elk, called Foster into a meeting with himself and Jon Wilson, a human-resources employee. Foster testified that the April 3 meeting proceeded as follows: Q: What was said at the meeting, and by whom?

A: Jim Miller said, " I called Dr. Funk and he says he has not seen you over this neck thing," however he said it. And something about, " You have not been to see Dr. Funk. We called and talked to him. So you're on suspension until we can figure it out."

Q: What did you say?

A: I said, " I told you over and over that I haven't seen Dr. Funk, but you all keep asking for a back-to-work slip from Dr. Funk. Dr. Funk hasn't seen me."

Q: And what did Mr. Miller, or anyone else, say?

A: Jim just shook his head. Kevin Jensen [West Elk's maintenance superintendent] did walk in at that point.

Q: Okay.

A: Because Jim said, " Well, Dr. Funk said he hasn't seen you." And I said, " Well, that's what I keep telling you, I haven't seen Dr. Funk." And I said, " You sons-a-bitches has been trying to get rid of me for the last year, one way or another." And I said, " You all are using any excuse you all can to get me out of here." And I asked Kevin again, I said, " I've got retraining this week. And I've got surgery scheduled--going to see the doctor [Dr. Dwyer] and schedule surgery for Friday--on Friday. I need to get these took care." He says, " You're on suspension. Don't do nothing."

Q: All right. Let me see if I understand what you said. You said you had retraining scheduled for next week; is that right?

A: The next day.

Q: For the next day?

A: Yes.

Q: And then you said you had surgery scheduled for--

Page 1183 A: I had an appointment with the doctor to schedule surgery.

Q: And you were referring to Dr. Dwyer?

A: Yes.

Q: For the next day?

A: Yes. All I asked was a little cooperation. No, they--nothing.

Appellant's App...

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